Ask any environmental leader if they have heard of the Mineral King case and chances are very good that the response will be along these lines: “Sure. Isn’t that the case where the Supreme Court said the Sierra Club has legal standing to block development?” That is close, but not quite right.

Mineral King is a subalpine glacial valley, popular with backpackers and hikers, that Walt Disney Productions wanted to develop as a ski resort in the 1960s. The Sierra Club brought suit, acting through its legal arm that later became the Earthjustice public interest law firm. (See more at www.earthjustice.org.) The Sierra Club argued that it met the requirements for legal “standing” to bring the lawsuit due to its long pedigree, dating back to John Muir, as a leading environmental organization.

The development was defeated and Mineral King eventually became part of Sequoia National Park. Many environmentalists I have met quite naturally assume that since the Sierra Club clearly won the war, it must have won the battle as well. But that is not correct. The Sierra Club actually lost the case.

The Supreme Court held that the Sierra Club as an organization would suffer no injury and therefore did not have the requisite standing. Justice Stewart’s majority opinion then provided a handy roadmap for future litigation: he said that the Sierra Club could have brought suit on behalf of its individual members if they had been able to demonstrate a particularized injury such as an adverse effect on their personal hiking, fishing or other recreational interests.

Unfortunately, the Sierra Club had not included these claims in its original lawsuit, so the case was remanded for dismissal. However, a footnote to the opinion saved the day by saying that the organization could add this theory by amending its complaint in the lower court. And ever since, environmental organizations have followed that script, being careful to allege a particularized injury to their individual members.

With all this procedural wrangling, replete with footnotes and other arcana, you can see why the legal profession enjoys such a sterling public reputation. Not that I would ever make light of my chosen profession. By the way, do you know how many lawyer jokes there are? Only three. All the rest are true stories.

If that was the end of it, the Mineral King case would itself be just a footnote in legal history. But I am interested in it for a different reason. I have previously written about Christopher Stone’s article, Should Trees Have Standing? He wrote this piece specifically for the purpose of influencing the Supreme Court’s Mineral King decision, articulating a broad theory that the Mineral King valley itself had standing to sue, acting through representative agents such as the Sierra Club.

Professor Stone’s article did not persuade the Court majority. It did resonate, however, with Supreme Court Justice William O. Douglas, who wrote an eloquent dissenting opinion. He was of course a leading proponent of environmental rights and a conservationist of long standing. Among other things, his personal history had intersected with that of Olaus and Mardy Murie. In 1956, when the Muries made their Sheenjek Valley trip to draw attention to the land that is now the Arctic Refuge, Justice Douglas and his wife flew in and camped with them for several days. See my previous post on this encounter at http://www.northernpassages.com/older-blogs/2014/3/19/coming-home-to-wilderness.

In his dissent in Sierra Club v. Morton, Justice Douglas picked up on the main theme of Professor Stone’s article, writing: “Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”

Using imagery of a style not always customary in legal opinions, he continued:

“So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.”

Douglas was a dissenter and his opinion is not the law today. But legal principles will undoubtedly continue to evolve -- much as they have with respect to the constitutional rights of corporations that I noted in a previous post. (See Whose Land? Part 3 -- Are Corporations People?)

I have no doubt that many years from now, the attorneys of the day will operate under a set of legal conventions in these areas that will be different in important respects from what we know today, but which will seem natural and even obvious to them. Perhaps those lawyers of the future will be accustomed to the legal standing of animals and rivers and mountains and will take the assertion of their rights for granted, viewing them as completely natural and unremarkable.

Could these legal arguments be relevant to the moral standing of concerned citizens throughout the country, indeed around the globe, to speak out for the interests of plants, soils, waters and animals in particular places, including in Alaska? Doesn’t Justice Douglas's dissent sound a lot like Aldo Leopold's land ethic?

Stay tuned to this series.

Click on the titles below to read previous posts in the Whose Land? series: